A wake-up call regarding the judicial usurpation of politics

by Michael Peck

A disturbing development taking place in our system of government today is the judicial usurpation of politics. A host of law professors and judges have voiced their dismay in case opinions and articles on the subject, but despite their arguments and protests the trend goes on unchecked. What is more disturbing is the apathy prevalent in the majority of the American public concerning this issue. What is happening is not a political squabble between liberals and conservatives but the end of democracy itself.

In the last fifty years of Supreme Court rulings there has been a surprising number of unprincipled decisions in which the court has taken legislative power away from states. Increasingly, important moral and cultural issues are being decided not by debate, representative politics, votes and elections, but by Supreme Court rulings. The most obvious example is the Roe v. Wade decision, which made abortion a “right” protected by the constitution, nullifying all state laws against abortion and prohibiting any further legislation on the matter except in certain minute details. This was done in spite of the fact that abortion rights are nowhere mentioned in the constitution. This amounts to judicial legislation. Some go so far as to call it judicial oligarchy.

This is not an entirely new problem. In 1857 we saw an example of judicial usurpation in the Dred Scott v. Standford decision (later overturned.) In that case, the court expanded the legal right of Americans to own slaves, although there were no constitutional criteria for their doing so. Justice Curtis had this to say in his dissenting opinion: “When a strict interpretation of the constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a constitution; we are under the government of individual men, who for the time being have power to declare what the constitution is, according to their own views of what it ought to mean.” 19 How, 393, 621 (1857) (Curtis J., dissenting)

At the heart of the problem, as Justice Curtis stated, is the question of constitutional interpretation. The function of the Supreme Court is to protect the rights and liberties of Americans as specified in the constitution. In other words, the document itself provides the basis for, and sets the limits of, the court’s authority. If the court strays from a strict interpretation of the constitution, its decisions become both arbitrary (because it substitutes its own value judgments for the law) and despotic (because it imposes those judgments on the nation, without regard for the preferences of the majority.)

Former Appellate Justice Robert Bork, in an Indiana Law Journal article on “Neutral Principles,” cites Griswald v. Connecticut as an example of the Supreme Court overstepping its authority. In that case, the court overturned the state of Connecticut’s anti-contraception laws based on a set of principles supposedly implied in a combination of constitutional amendments. According to the court majority, these “penumbras” create “zones of privacy.” While these zones are not mentioned in any constitutional amendment, the court maintained that they constitute a right of privacy protecting certain behavior; in this case contraception. In his dissenting opinion, Justice Black accuses the court of replacing the specified meanings of the amendments (free speech and unreasonable search and seizures) with the more general term of “privacy” which he calls an “abstract and ambiguous concept which can easily be shrunken in meaning but which also can…be interpreted as a constitutional ban on many things other than searches and seizures.” Further, he said that “if properly construed neither the due process clause nor the ninth amendment, nor both together, could under any circumstances be a proper basis for invalidating the Connecticut law. 381 US 521 (1965) (Black, J., dissenting)” Bork agrees with Justice Black that this decision was based not on a proper interpretation of the constitution but on the courts subjective value preferences.

In effect, what these penumbras have done is provide the court with a free pass for interpreting the constitution so loosely that it is emptied of meaningful content.

Later in Roe v. Wade the Supreme Court upheld and expanded this supposed right of privacy. (In a dissenting opinion, Justice Rehnquist pointed out that this new right was not apparent to the drafters of the constitution, since if it had been they would have objected to the laws against abortion existing in thirty-six states at the time.) In Planned Parenthood v. Casey the court employed a similar tactic when it elaborated a new conception of liberty: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. 505 US 9 (1992)” This definition of liberty surpasses “zones of privacy” in it’s ambiguity and potential for limitless interpretation. Justice Scalia in his dissenting opinion insisted that although many women may consider abortion to be a right, it is simply not protected by the constitution, and thus the court had no authority to overrule a state law against it. Yet abortion rights were upheld in Planned Parenthood v. Casey on the basis of liberty, despite the fact that it has no discernible basis either in the wording of the constitution or in the intent of the framers. Again, the Supreme Court usurped the legislative function of the States.

Through cases like these, where Supreme Court decisions are not backed by the express or implied meaning of the constitution, the court is effectively declaring that the constitution can mean whatever it, the court, thinks it ought to mean. Laws it doesn’t approve may be summarily overturned, no matter how large a majority of Americans support them. Thus, the court circumvents the legislative process and imposes its own values on the nation. This is not how democracy works.

Justice Black foresaw that problem in the Giswald v. Connecticut decision: “The adoption of such a loose, flexible, uncontrolled, standard for holding laws unconstitutional…will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. 381 US 511 (1965) (Black, J., dissenting)” Likewise Justice Scalia warns that the court should not operate in such a political fashion lest it undermine its legitimate authority. He concludes his dissenting opinion in Planned Parenthood v. Casey with these words: “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining. 505 US 25 (1992) (Scalia, J., dissenting)”

Many legal scholars and judges have been sounding an alarm—arguing that decisions like these have no place in a democracy. The November, 1996 issue of First Things featured a symposium on this topic, titled “The End of Democracy?” which included contributions from such eminent legal authorities and commentators as Robert Bork, Charles Colson, Russell Hittenger and Hadley Arkes. Although these writers differed in their sense of the extent of the problem and in their proposals for reform, all agreed that the situation is extremely serious—threatening our society at the level of its core principles.

Thus, we should recognize that this problem does not concern exclusively those in the legal profession. It is pertinent to everyone involved in the political process. Since our country is a democracy, it ought to concern all of us. A shift of political power to the Judicial branch has perhaps already distorted the proper running of a democratic system, removing legislative power out of representative politics and placing it in the hands of a committee of nine lawyers. If we are interested in preserving the democratic system, now is the time to look carefully and critically at this development asking ourselves and each other what is to be done.